The golden rule: What does it mean for a disputed will?

If a will was made by someone who was elderly or seriously ill, questions may arise about whether they had the mental capacity required to make it. The “golden rule” is intended to reduce the risk of such disputes by recommending that medical evidence is obtained when the will is prepared.

But what is the golden rule, and does failing to follow it make a will invalid?

What is the golden rule?

The golden rule describes good practice for professionals preparing wills. Broadly, it recommends that where a person making a will is elderly or seriously ill, a medical practitioner should assess and confirm their testamentary capacity before the Will is executed and/or act as one of the witnesses to the will.

This can provide valuable contemporaneous evidence that the person understood what they were doing when the will was made. It may therefore help to protect their wishes and reduce the risk of a later dispute.

The purpose of the rule is to protect the testator’s wishes and provide reassurance for those who benefit under the will.

Is a will invalid if the golden rule isn’t followed?

No. Despite its name, the golden rule is not a rule of law. A failure to follow it does not automatically make a will invalid. Equally, following the golden rule does not guarantee that a will is valid.

The court will consider all the available evidence about the person’s capacity at the relevant time. Evidence from the solicitor who prepared the will, including detailed attendance notes recording the instructions given and the solicitor’s own assessment of capacity, may be particularly important.

However, if there were reasons to doubt the person’s capacity and no contemporaneous medical assessment was obtained, the will may be more vulnerable to challenge and harder to defend.

How does the court assess testamentary capacity?

Testamentary capacity relates specifically to the capacity to make a will. The courts will assess the testamentary capacity of an individual using the Banks v Goodfellow test, which looks at whether the testator:

1. Understood they were making a will and its effect;
2. Understood the nature and extent of their estate (i.e. the assets they hold);
3. Understood the potential claims on their estate by those who might expect to benefit; and
4. Was affected by any ‘disorder of the mind’ that may have impacted the terms of their will.

Although the Mental Capacity Act 2005 contains a statutory test for capacity in many contexts, Banks v Goodfellow remains the governing test for testamentary capacity.

Capacity is decision and time specific. The fact that someone had a medical condition, memory difficulties or periods of confusion does not, by itself, establish that they lacked testamentary capacity.

Where there is no contemporaneous medical assessment, the court may place greater reliance on other available evidence, including the drafting solicitor’s notes, their assessment of the client, the testator’s medical records and any retrospective capacity assessment obtained after death. Relevant indicators may include recorded cognitive decline, inconsistent instructions or a significant departure from previous wills.

In short, non-compliance with the Golden Rule will not determine the outcome on its own, but it may lead the court to scrutinise the surrounding circumstances and evidence more closely.

Could my inheritance be at risk?

Potentially. A will may still be valid and upheld by a court even if the golden rule was not followed. However, where there are concerns about capacity, non-compliance may make the will more vulnerable to challenge and increase the risk of lengthy, stressful and costly litigation.

If a challenge to the will’s validity is successful, the estate would ordinarily pass in accordance with an earlier valid will or, if there is no earlier will, under the intestacy rules. This could affect both who inherits and how much they receive.

What steps should I take if I have concerns about a will?

If you have concerns about a testator’s capacity when they made a will, there are a number of practical steps you can take. These include:

1. Obtaining a copy of the will file and earlier wills, together with a statement from the professional who drafted the will.
2. Considering whether medical records can and should be requested to clarify whether any capacity issues were recorded at the relevant time.
3. If probate has not yet been granted, considering whether to enter a caveat against the estate. A caveat prevents a grant of probate from being issued and can provide time for investigations into the validity of a will. It should not, however, be used simply to delay or obstruct the administration of the estate.
4. Preserve any evidence you hold such as previous wills, correspondence with the relevant parties and notes of conversations with the testator.
5. Seek specialist legal advice as early as possible.

How we can help

If you are concerned about the validity of a will, or you are defending a challenge to a will, please get in touch. The team at Cripps are experts in this field and we can advise on the appropriate next steps.